High Court of KeralaSingle Judge2015-03-13Writ petitions dismissed

Abdussalam s/o Aboobacker Haji v. Registering Authority, Sub Regional Transport Office, Tirur, Malappuram District, and Addl. R2 & Addl. R3

Case / Petition Number:WP(C).No.28773 of 2011 (V)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2015-03-13
Court Decision / Holding: The writ petitions would stand dismissed. No costs.
Final Disposition: Writ petitions dismissed

Parties to the Case

Appellants / Petitioners

Abdussalam s/o Aboobacker Haji, KurukkolI House, Thalakakkadathoor P.O., Malappuram District

Respondents

Registering Authority, Sub Regional Transport Office, Tirur, Malappuram District
The Transport Commissioner, Thiruvananthapuram
The Principal Secretary to Government, Ministry of Road Transport and Highways, New Delhi

Legal Representation & Advocates

Counsels for Petitioners

• G. Hariharan
• Praveen H.

Counsels for Respondents

• R. Ranjith (Govt. Pleader)
• N. Nagareesh, ASGI

Case Synopsis & Summary

These three writ petitions challenge the classification of a crane-mounted vehicle as a non-transport vehicle under the Motor Vehicles Act, 1988. Abdussalam, the petitioner, mounted a crane on a Bolero Camper and similar modifications on a Mahindra Bolero Maxi Truck, and a Tata LPT 909 EX2, contending that the vehicles fall under non-transport or specifically listed non-transport categories under the notification issued under Section 41(4) of the MV Act, 1988 (SO 1248(E), dated 05.11.2004). The petition sought to register the vehicles as Non-Transport Vehicles or, in alternative, as Crane Mounted Vehicles or as Tow Trucks/Breakdown/Recovery Vehicles under the notification. The Respondents contended that the vehicles remain Goods Carriage Vehicles by virtue of their manufacture and subsequent alterations; the ownership’s intent cannot determine classification, and alterations under Section 52 are not permissible; the vehicle’s overall length is extended beyond permissible limits under Rule 93(3) of CMVR 1989. The court observed that the vehicles were not manufactured as crane-mounted or breakdown vehicles and that alterations were made without authority, which defeats the reliefs sought. It held that the Act requires the designation based on design, construction and use, not mere intended use, and that Goods Carriage remains a transport vehicle. The petitions are dismissed with no costs.

Provisions of Law Cited

Motor Vehicles Act, 1988 — Section 41(4)Motor Vehicles Act, 1988 — Section 52Central Motor Vehicles Rules, 1989 — Rule 93(3) (Explanation thereto)Motor Vehicles Act, 1988 — S.2(14) Goods CarriageMotor Vehicles Act, 1988 — S.2(47) Transport VehicleNotifi cation under Sub-section 4 of Section 41 of MV Act, 1988 — S.O. No.1248(E) dated 05.11.2004

Legal Doctrines & Maxims

Intention of the user cannot determine registration for classification (supported by Hassan Koya)
Design, construction and use as the basis for classification under Section 41(4)
Alterations to a vehicle must be permissible under Section 52 of MV Act
Prototype classification cannot override statutory definitions of Goods Carriage/Transport Vehicle

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicants contended that the crane-mounted vehicles should be classified under the non-transport category under the notification issued under Section 41(4) of the MV Act, 1988 (SO 1248(E), 05.11.2004). They argued that the listed items include Crane-mounted vehicles (item viii) and Tow Trucks/Breakdown/Recovery Vehicles (item xii), and that modifications to adapt the vehicles for crane/breakdown use should not defeat a non-transport classification. They asserted that the non-transport status would allow private use without treating the vehicle as a Goods Carriage Transport Vehicle. They relied on the design, construction and use criteria in the notification and contended that the owner’s intention should not govern registration. They pleaded for registration of the modified vehicles as Non-Transport vehicles or as crane-mounted/breakdown vehicles under the notification.

Contentions of Respondents

Respondents argued that the vehicles were manufactured as Goods Carriage Vehicles and were altered without lawful authority under Section 52 of the MV Act. They submitted that the alterations extend beyond the prototype approval by increasing overall length and mounting a recovery mechanism, which violates Rule 93(3) of CMVR 1989. They asserted that the notification cannot be invoked to classify a Goods Carriage vehicle as Non-Transport Vehicle based on owner’s intention, and emphasized that the central government’s power to specify vehicle type requires conformity with the design, construction and use, not merely intended usage. They concluded that registration must reflect the vehicle’s status as a Goods Carriage/Transport Vehicle and that the petitions should be dismissed.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Hassan Koya v. Transport Commissioner	2015 (1) KLT 916	Positive	Cited to reject the argument that the user’s intention should control registration; the court follows Hassan Koya’s reasoning that intention cannot govern registration classification.
Shamnad v. Regional Transport Officer	2015 (1) KLT 931	Positive	Mentioned as a supportive authority reinforcing the position that owner’s intended use cannot determine vehicle classification; followed for the same principle as Hassan Koya.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **FRIDAY, THE 13TH DAY OF MARCH 2015/22ND PHALGUNA, 1936** ## **WP(C).No.28773 of 2011 (V)** **----------------------------------------** **PETITIONER:** **-------------------** **ABDUSSALAM,S/O.ABOOBACKER HAJI, KURUKKOLI HOUSE,THALAKKADATHOOR P.O. MALAPPURAM DISTRICT,PIN-676 103.** **BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H.** **RESPONDENTS:** **----------------------------** **1. REGISTERING AUTHORITY, SUB REGIONAL TRANSPORT OFFICE, TIRUR,MALAPPURAM DISTRICT,PIN 679 577.** ## ***ADDITIONAL R2 AND R3 IMPLEADED** **ADDL.R2.THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM-695001.** **ADDL.R3.THE PRINCIPAL SECRETARY TO GOVERNMENT, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, PARLIAMENT STREET,NEW DELHI-110001.** **ADDITIONAL R2 AND R3 ARE IMPLEADED AS PER ORDER DATED 13.3.2015 IN I.A. NO.3886/2015 IN W.P(C) 28773/2011.** **R1 & ADDL.R2 BY GOVT. PLEADER SRI.R.RANJITH. ADDL.R3 BY SRI.N.NAGARESH,ASGI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-03-2015, ALONG WITH WP(C) 14108/2012 & W.P(C) 30028/2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **pk** ## **WP(C).No.28773 of 2011 (V)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1:TRUE COPY OF THE SALE CERTIFICATE ISSUED RELATING TO THE VEHICLE BOLERO CAMPER SCXL FLAT BED BS3 2WD ISSUED BY M/S.ITL MOTORS PVT.LTD.,KUTTANELLUR,THRISSUR ON 11.10.2011.** - **EXT.P2:TRUE COPY OF THE TEMPORARY REGISTRATION CERTIFICATE BEARING REGISTRATION NO.KL-08P-TEMP-921 ISSUED BY THE REGISTERING AUTHORITY,THRISSUR ON 11.10.2011.** - **EXT.P3:TRUE COPY OF THE CERTIFICATE IN FORM 22A UNDER RULE 47(G) 124,126-A & 127 OF THE CENTRAL MOTOR VEHICLE RULES.** - **EXT.P4:TRUE COPY OF THE APPLICATION DATED 21.10.2011 FILED FOR REGISTRATION OF VEHICLE MENTIONED IN EXHIBIT.P1.** - **EXT.P5:TRUE COPY OF THE PHOTOGRAPHS OF THE MENTIONED IN EXHIBIT P1 AFTER MOUNTING OF THE CRANE ON THE VEHICLE BY M/S.MALAVIKA ENGINEERING WORKS,KODIMATHA.** - **EXT.P6:TRUE COPY OF THE REGISTRATION CERTIFICATE OF A BREAK DOWN RECOVERY VAN BEARING REGISTRATION NO.KL-53B-9992 REGISTERED AT SUB REGIONAL TRANSPORT OFFICE,PERINTHALMANNA.** - **EXT.P7:TRUE COPY OF THE INTERIM ORDER MADE WP(C) NO.20400/2011 DATED 24.8.2011.** - **EXT.P8:TRUE COPY OF THE NOTIFICATION DATED 5.11.2014 ISSUED UNDER SUB SECTION 4 OF SECTION 41 OF THE MOTOR VEHICLES ACT BY THE GOVERNMENT OF INDIA.** ## **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **pk** K.Vinod Chandran, J. **-----------------------------------------------------------------------------------------** W.P.(C).Nos.28773 of 2011-V, 14108 of 2012-K & 30028 of 2014-C **----------------------------------------------------------------------------------------** Dated this the 13[th] day of March, 2015 ## **JUDGMENT** The three writ petitions are with respect to the classification of a crane mounted vehicle as a non-transport vehicle. W.P.(C).No.28773 of 2011 deals with a Bolero Camper SCXL Flat Bed BS3 2WD vehicle and W.P.(C).No.30028 of 2014 concerns a Mahindra Bolero Maxi Truck; both of which are classified as “Light Motor Vehicle Goods Carriage Trucks” by the manufacturer according to the prototype classification. Similar is the case of Tata LPT 909 EX2 vehicle, which is the subject matter of W.P.(C).No.14107 of 2012. The Bolero vehicles have a seating capacity of two, with an open platform for carriage of goods. The Tata vehicle has a seating capacity of three, again with an open plat-form for carriage of goods. The petitioners have mounted a mechanism in the open platform intended for carriage of goods and contends that as per the notification issued under sub-section (4) of Section 41 of the Motor Vehicles Act, 1988 [for brevity “Act of 1988”], as S.O. No.1248(E) dated 05.11.2004, the vehicles are to be classified as a 'Non-Transport Vehicle'. WP(C).No.28773 of 2011 & - 2 - connected cases 2. The claim based on the notification though is to register the same as a non-transport vehicle;' the alternative prayers are to consider it either as a “Crane mounted vehicle” [item No.(viii) of the notification] or “Tow Trucks, Breakdown Van and Recovery Vehicles” [item No.(xii)]. At the outset, it is to be noticed that the vehicles are not manufactured as a Crane mounted vehicle or a Tow Truck, etc. Alterations have been made by the owner to adapt it as a break down/recovery van. First, it has to be satisfied that the alteration is permissible, under Section 52 of the MV Act of 1988 for it to be endorsed on the Registration Certificate. The contention of the Department in that context, in their counter affidavit in W.P.(C). No.28773 of 2011, reads as under: “5. It is further submitted that the vehicle in question is a Mahindra & Mahindra Light Goods Vehicle having an unladen weight of 2880 Kgs sold and registered as body type 'open'. The body of the vehicle is found extensively altered beyond the limit of dimensions stipulated in the prototype approval of the vehicle. The recovery mechanism which consists of a boom pipe assembly, towing hook extents beyond the rear most end point of the vehicle by 45 cm and permanently remain so even when the vehicle is in motion. In effect the overall length is increased by 45 cms, which is against the provisions of the statute. WP(C).No.28773 of 2011 & - 3 - connected cases Explanation to Rule 93 (3) of CMVR 1989 reads as: For the purpose of this rule “The overall length means the length of a vehicle measured between parallel planes passing through the extreme projection of the vehicle exclusive of (i) starting handle (ii) any hood when down (iii) any fire escape fixed to a vehicle (iv) any post office, letterbox the length of which measured parallel to the axis of the vehicle, does not exceed 30 cms (v) any ladder used for loading or unloading from the roof of the vehicle or any tail or indicator lamp or number plate fixed to the vehicle (vi) any towing hook or other fitment which does not project beyond any fitment covered by clauses (iii) to (vi)”. Hence, in the case on hand, alteration made by the petitioner is without any authority and hence he is not entitled to get the reliefs as sought for. 6. It is to be noted that the boom pipe hook and other parts of the recovery mechanism is welded to an MS (Mild Steel) plate, which in turn is fitted to the load carrying platform of the vehicle by four M19 MS Bolts. The MS plate itself is only 16 SWG (Specific Wire Guage) ie; 1.626 mm thickness, which is not at all sufficient to withstand the sheer loads acting at the region where holes have ben drilled to accommodate the recovery mechanism. The recovery mechanism work as a cantilever wherein, the major portion of the load acts at the base of the recovery mechanism mounted on the MS plate. Since the towed vehicle is not supported anywhere on the platform and is kept hanging from the towing hook it may sway to the sides or wobble affecting the strength of towing mechanism as side shear forces also will act on the base of the recovery mechanism”. WP(C).No.28773 of 2011 & - 4 - connected cases 3. The other question raised is that though the prototype classification is “Goods Carriage Truck”, whether the registration has to be on the basis of the intention of the owner of the vehicle, since the vehicle is intended to be used as a crane mounted vehicle/breakdown/recovery van, as per the notification, which has to be registered as a Non-Transport Vehicle, is the contention raised. The said contention with respect to a vehicle having a seating capacity of 5 and an open platform was repelled by a Division Bench of this Court in the decision reported in _**Hassan Koya v. Transport Commissioner**_ **[2015 (1) KLT 916].** Following the said judgment, the distinction sought to be urged by certain persons was also answered by this Court in the judgment in _**Shamnad v. Regional Transport Officer**_ **[2015 (1) KLT 931].** Hence, none can contend that the intention of the user should be taken into account to decide the aspect of registration. Further, sub-section (4) of Section 41 of the MV Act of 1988 does not confer power on the Central Government to specify the type of vehicle only on the intended use. The provision requires such specification in accordance with the “design, construction and use”. WP(C).No.28773 of 2011 & - 5 - connected cases 4. The aspect of registration has to be looked at in the background of the provisions of the Act of 1988. The Act of 1988 does not provide for a registration of a vehicle as “Non-Transport Vehicle”. Any vehicle which is not a transport vehicle would be a non-transport vehicle, for e.g., Light Motor Vehicle, which is used for private use. This is how the Central Motor Vehicles Rules, 1989 specify the category of non-transport vehicles. The counter affidavit of the State also indicates that the notification relied on by the petitioner, is with respect to the original prototype as approved by the Automobile Association of India and manufactured as a Crane mounted vehicle, Tow Truck, Breakdown Van and Recovery Vehicle. Hence, an alteration made by the purchaser on a vehicle produced by the manufacturer as a 'Goods Carriage Truck' would be a Transport Vehicle as per the MV Act of 1988. On conversion or alteration, the vehicle does not cease to be a 'Goods Carriage Truck'. 5. In the present cases, all the vehicles are Goods Carriage Vehicles and there can be no registration effected as a Non-Transport Vehicle, since a Goods Carriage vehicle comes within WP(C).No.28773 of 2011 & - 6 - connected cases the definition of “Transport Vehicle”. The definition of “Goods Carriage” and “Transport Vehicle” are extracted hereunder: **“S.2(14) “Goods carriage”** means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods”. **“S.2(47) “Transport vehicle”** means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle”. The vehicle being manufactured solely for the carriage of goods and the same being categorised as a “Goods Carriage” vehicle, it cannot be classified as a “Non-Transport Vehicle”. The alteration being not permissible under Section 52 also stands against the petitioners. The writ petitions would stand dismissed. No costs. Sd/K.Vinod Chandran, Judge vku. [ true copy ]